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The Colorado Constitution, Article X, Section 20 (3) (b) has a requirement for mailing notices to voters about upcoming elections, see below.

(b) At least 30 days before a ballot issue election, districts shall mail at the least cost, and as a package where districts with ballot issues overlap, a titled notice or set of notices addressed to "All Registered Voters" at each address of one or more active registered electors. The districts may coordinate the mailing required by this paragraph (b) with the distribution of the ballot information booklet required by section 1 (7.5) of article V of this constitution in order to save mailing costs. Titles shall have this order of preference:"NOTICE OF ELECTION TO INCREASE TAXES/TO INCREASE DEBT/ON A CITIZEN PETITION/ON A REFERRED MEASURE." Except for district voter-approved additions, notices shall include only:

(i) The election date, hours, ballot title, text, and local election office address and telephone number.

(ii) For proposed district tax or bonded debt increases, the estimated or actual total of district fiscal year spending for the current year and each of the past four years, and the overall percentage and dollar change.

(iii) For the first full fiscal year of each proposed district tax increase, district estimates of the maximum dollar amount of each increase and of district fiscal year spending without the increase.

(iv) For proposed district bonded debt, its principal amount and maximum annual and total district repayment cost, and the principal balance of total current district bonded debt and its maximum annual and remaining total district repayment cost.

(v) Two summaries, up to 500 words each, one for and one against the proposal, of written comments filed with the election officer by 45 days before the election. No summary shall mention names of persons or private groups, nor any endorsements of or resolutions against the proposal. Petition representatives following these rules shall write this summary for their petition. The election officer shall maintain and accurately summarize all other relevant written comments. The provisions of this subparagraph (v) do not apply to a statewide ballot issue, which is subject to the provisions of section 1 (7.5) of article V of this constitution.

"Ballot issue" is defined in Section 2 as "a non-recall petition or referred measure in an election."

My questions:

  • Given that Section 20 is mainly concerned with revenue-raising measures, do the notification provisions of subsection (3)(b) apply to all ballot issues, or only to those which increase taxes or debt?

  • If they do apply to all ballot issues, what is the impact of a county failing to provide such a notification for one or more specific ballot issues?

For the general election just past, a certain county had sent out a mailer that only included the required information (title, text, arguments pro/con, etc) for those ballot issues involving taxation or debt. Several non-revenue measures (such as 1A, 2D, 2E, 2F, 2H, et cetera) also appeared on the ballot, but the mailer did not include any information at all about them, except to show them on the included sample ballot. I am wondering if this is legal, and if not, whether it has any effect on the validity of the election results for those measures.

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Given that Section 20 is mainly concerned with revenue-raising measures, do the notification provisions of subsection (3)(b) apply to all ballot issues, or only to those which increase taxes or debt?

Yes it applies only to those which increase taxes or debt. But, keep in mind that the term "increase taxes" has a non-natural definition in TABOR (the "Taxpayer's Bill Of Rights") in the Colorado Constitution to which the question cites includes retaining increased revenue from an existing tax at an existing rate which increases faster than a formula set in another part of TABOR. A common kind of ballot that is subject to this rule suspends the limitation on revenue increases that don't increase a tax or tax rate, and these are called "debrucing" measures (after Douglas Bruce, who drafted and brought about the enactment of TABOR in Colorado).

Other ballot issues are sometimes included in information packets, and that may even be legally required in some cases, but the requirement to do so is not a constitutional requirement arising from TABOR.

For other ballot issues, the relevant rules arise from Colorado Constitution, Article V, Section 1, and the statutory election laws of the state of Colorado found in Title 1 of the Colorado Revised Statutes (primarily in Article 40), regulations of the Colorado Secretary of State, and in the ordinances and governing documents, and governing statutes of a county or home rule county.

The Colorado Constitution provisions related to voter guides on non-tax measures in Article V are as follows (emphasis added):

(7.3) Before any election at which the voters of the entire state will vote on any initiated or referred constitutional amendment or legislation, the nonpartisan research staff of the general assembly shall cause to be published the text and title of every such measure. Such publication shall be made at least one time in at least one legal publication of general circulation in each county of the state and shall be made at least fifteen days prior to the final date of voter registration for the election. The form and manner of publication shall be as prescribed by law and shall ensure a reasonable opportunity for the voters statewide to become informed about the text and title of each measure.

(7.5)(a) Before any election at which the voters of the entire state will vote on any initiated or referred constitutional amendment or legislation, the nonpartisan research staff of the general assembly shall prepare and make available to the public the following information in the form of a ballot information booklet: (I) The text and title of each measure to be voted on; (II) A fair and impartial analysis of each measure, which shall include a summary and the major arguments both for and against the measure, and which may include any other information that would assist understanding the purpose and effect of the measure. Any person may file written comments for consideration by the research staff during the preparation of such analysis.

(b) At least thirty days before the election, the research staff shall cause the ballot information booklet to be distributed to active registered voters statewide.

(c) If any measure to be voted on by the voters of the entire state includes matters arising under section 20 of article X of this constitution, the ballot information booklet shall include the information and the titled notice required by section 20 (3)(b) of article X, and the mailing of such information pursuant to section 20 (3)(b) of article X is not required.

(d) The general assembly shall provide sufficient appropriations for the preparation and distribution of the ballot information booklet pursuant to this subsection (7.5) at no charge to recipients.

Special and different rules apply to recall elections in Colorado Constitution, Article XXI and implementing legislation, regulations of the Secretary of State, and ordinances, in addition to Title 1 of the Colorado Revised Statutes.

Local ballot measures aren't subject to the state constitutional information book requirement for statewide measures, and Article XX, Section 20(2) provides a roadmap phrase that suggests that Article V rather than Article XX controls in the case of information booklets about non-TABOR measures.

For the general election just past, a certain county had sent out a mailer that only included the required information (title, text, arguments pro/con, etc) for those ballot issues involving taxation or debt. Several non-revenue measures (such as 1A, 2D, 2E, 2F, 2H, et cetera) also appeared on the ballot, but the mailer did not include any information at all about them, except to show them on the included sample ballot. I am wondering if this is legal, and if not, whether it has any effect on the validity of the election results for those measures.

This is almost certainly legal.

In general, remedies if election laws are not complied with are a rather complicated matter. As much as possible, the law is designed procedurally to require any challenges to the validity of a ballot measure or the way that it is presented to the citizens to be raised before the election happens, so many challenges are time barred if no one brings suit fast enough. There are also tricky standing to sue issues involved.

Sometimes a measure can be invalidated if the process is not properly followed, but that isn't automatically the remedy, especially if the non-compliance is harmless in practice.

Certainly, for example, a ballot issue would probably not be invalidated after an election, if it was passed with 81% of the vote in a year with high voter turnout, even if due to a computer glitch, required TABOR notices for a tax measure were not sent to people whose addresses had less than three digits, or to people whose surnames were less than three letters long, even if that means that the government indisputably failed to comply with the constitutional requirement for 3% of voters in the county.

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  • In the first part, you're saying the rule only applies to tax/debt measures? (The "yes" is ambiguous.) I would believe it, but I'm curious how you can be sure. Is it based on a particular rule of construction, or court ruling? It's just that the plain meaning of "ballot issue" seems to be any issue that is on the ballot, regardless of its topic, and nothing explicitly says otherwise. So it's a little surprising that this interpretation is superseded just by being in the same section as a bunch of tax-related provisions. Commented Nov 10, 2022 at 14:45
  • Also, if (3)(b) is only supposed to apply to tax/debt measures, then why include "non-recall" in the definition of "ballot issue"? That would be redundant as a recall petition can't ever be about taxes or debt. Commented Nov 10, 2022 at 14:47
  • @NateEldredge I've added some language to the answer to address this issue and to clear up the ambiguity. The location within the Constitution in a single measure (TABOR) that was adopted all at once also suggests this reading.
    – ohwilleke
    Commented Nov 10, 2022 at 20:09

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